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Sockatume writes "Ars Technica is reporting that Google has given music conglomerate UMG the right to arbitrarily eliminate YouTube videos. When UMG had Megaupload's 'Mega Song' removed from the site, it was assumed that they had made a DMCA claim, and that YouTube was responding under its 'safe harbor' obligations. Megaupload's legal response argues that UMG has no grounds to request a DMCA takedown. However in court filings (PDF), UMG claims that its licensing agreement with Google gives it the power and authority to unilaterally wipe videos from the site, bypassing the DMCA entirely. If true, that means that your activities on YouTube are not just curtailed by the law, but by the terms of their secret agreements with media conglomerates."

Anyone who believes a "don't be evil" tag from any public corporation is fooling themselves, especially a corporation whose entire reason for existance is advertising. *You* are not their customer. You are a product they sell to their customer -- something its always good to keep in mind with these companies.

You would think that with the popularity of YouTube Google could just tell UMG to fuck off and remove all their content from the site, then simply process DMCA requests as they come in. Companies want to be on YouTube because it's where the cool kids hang out, and if they don't play nice they can take their ball and ram it up their cock.

Seriously, why are Google pandering to these crooks when they hold all the cards?

Actually this may be a very good thing. Talk about giving someone enough rope to hang themselves with.The Megaupload video is so not important. Them taking down the TWIT video podcast really could be a freedom of the press issue and one that overrides their agreement with YouTube.

I'm not really downing Google on this one as it could have gone either way. Option 1: UMG "This is infringing on our IP (censorship). Take it down or we bury you in an avalanche of lawsuits. Now of course Google can handle their lawsuits but it's really not in their shareholders best interest to rack up a bunch of billable hours.
Option 2: You take the deal and no one (of consequence) gets hurt.
If the artists in the video wanted to make a statement they could have done a better job of it by not renewing

They don't claim that their motto is "don't be evil", they claim that they believe that you can make money without doing evil. It is different.

http://en.wikipedia.org/wiki/Don't_be_evil [wikipedia.org]:
While the official corporate philosophy of Google[4] does not contain the words "Don't be evil", they were included in the prospectus (aka "S-1") of Google's 2004 IPO (a letter from Google's founders, later called the "'Don't Be Evil' manifesto"): "Don’t be evil. We believe strongly that in the long term, we will be better served — as shareholders and in all other ways — by a company that does good things for the world even if we forgo some short term gains."[5

Sweet Cheeses, indeed. When the actions of the service owner directly contradict the very NAME of the service in question, yes it becomes more than "lacking good intentions".

The DMCA has provisions to let UMG and Google settle their disputes without a single lawsuit, but Google (apparently) chose the path of least resistance, giving the content enforcement job to a media company that does not have the user's best interest in mind. Certainly not "dont-be-evil" no matter how you cut it. If the cost of compliance on Youtube is too great for Google to bear, there has to be a better solution than just giving the keys to the castle away to a media company so they have free reign to take what is billed as a free and open video sharing site and turn it into "whatever UMG thinks you should be able to watch".

When the actions of the service owner directly contradict the very NAME of the service in question,

So they changed it from a series of tubes to a dump truck?

Bingo. And not just any dump truck, one of those asshole dump trucks that drives around dropping 2" pieces of rock out the back and has a sign affixed to it proclaiming "Not Responsible For Broken Windshields".

If the cost of compliance on Youtube is too great for Google to bear, there has to be a better solution than just giving the keys to the castle away to a media company so they have free reign to take what is billed as a free and open video sharing site and turn it into "whatever UMG thinks you should be able to watch".

Seems to me Google was using the "give them enough rope to hang themselves" strategy.

The problem with all this bickering over copyright is that, outside of tech circles like slashdot, the general public doesn't give a damn. The media companies, by definition, always have an open mic to broadcast their side of the debate to the public. The opposition does not have this luxury, at least not without paying for it. So they have to resort to stories which are juicy enough to overcome the pro-media bias of the press, and get them to run it. "UMG has power to censor your YouTube videos!" sounds like a pretty successful result in that respect.

The alternative would be for Google to fight the media companies in the courts, to be decided by judges and juries who've been indoctrinated by decades of single-sided "piracy is stealing" brainwashing. This is no longer a legal fight - the media companies have pretty much won that and have the law on their side. This is a public policy fight. The public needs to be educated why the pendulum has swung too far in favor of copyright holders, so that they pressure their legislators to change the law.

I guess their obligation is to absorb infinite lawsuits on behalf of every kid who puts music on their videos?

How about you go start your own corporation and run it on good intentions.

Complying with DMCA would prevent that. If this is true, Google have gone much much further in allowing UMG direct access to bypass due process and practice arbitrarily censorship on Youtube users. If you think that is fully in line with boasting about having much better values than competitors, not doing evil, and that Google shouldn't be kept to that claim when making it, then I guess we disagree about that.

"Don’t be evil. We believe strongly that in the long term, we will be better served — as shareholders and in all other ways — by a company that does good things for the world even if we forgo some short term gains." (Google Founders [wikipedia.org])..."the slogan was "also a bit of a jab at a lot of the other companies, especially our competitors, who at the time, in our opinion, were kind of exploiting the users to some extent.""

And if true, I would put money on it being part of some larger commercial faustian deal with UMG. Can't see any other reason why they should go along with something like that.

To retain their safe harbour status, which makes them immune to copyright infringement lawsuits on their hosted content, all that they need to do is take down any content on receipt of a DMCA take-down notice and restore it on receipt of a counter notice.

More importantly, I'm a little surprised that this doesn't open them up to more liability. I was under the impression that the DMCA's safe harbour status only applied to site that didn't actively police their own content. If they do, then they fall under the same rules as a publisher and are liable for wilful commercial infringement.

Google is not actively policing its own content, UMG is. I am sure as part of the licensing agreement Google is absolved of any liability as it has become UMG's responsibility to police the content.

I would not be surprised if Google has quietly done this with all "big" (read enough money to sue them) content distributors so that they don't have to do anything.

ContentID was a massive failure. It never actually worked right and the copyright owners were swamped with "spam" notifications that turned out to be nothing, or worse, they took down everything. The resultant complaints, from people like me, that showed the ContentID system was fundamentally flawed and taking down videos without cause gave Google a difficult problem to solve. In my own case, the videos were only flagged and no action was taken. That was from a single copyright owner though, that probably made the decision to not do anything. UMG I bet would have acted differently.

Your concerns are mitigated through whatever contractual agreements that Google has with UMG.

I think YOU may be the troll. We simply do not know the terms of the legal agreement between UMG and Google. We can tell from the small but Ars Technica published that it is not what you said - it is not unilateral rights to take down whatever the fuck they want. There are specific stipulations. They have not been made public. Perhaps it reads like this: If any of our artists that is under an exclusive contract with us is in any performance not connected with us, we can take that down to enforce our exclusi

Soon enough, Big Content will own the companies that own the intertubes, so yeah, they'll do as they please. That's our Achilles' heel: we, the public, don't own the infrastructure, i.e. the roads. Of course, we could always piggy back an encrypted p2p network on top of commercial carrier backbones, but it will always remain a matter of goodwill from the backbone operators (and their corporate overlords) whether and how long we could do that.

And if someone doesn't like it, they can use another site else like Vimeo [vimeo.com]. I have yet to have videos that have had audio disabled on YouTube suffer the same fate on Vimeo. Or host your own web site and take control of your life.

I just wish they would stop whining about how someone who is letting you use their site for free isn't fair.....

Our partners do not have broad take-down rights to remove anything they don’t like from our service. In limited cases, if they so choose, and based on exclusive agreements with their artists, partners can take down live performances.

I suspect that when your core business depends on building massive caches of copyrighted materials(for what one would hope is a non-infringing purpose; but search engine databases aren't exactly a fully litigated area...), with some side businesses in youtube, Google Books, etc, etc. Team Content is able to make some interesting threats regarding decades of potentially catastrophic legislation...

Now, lest I be misunderstood, I think that the fact that what are commonly thought of as free venues for expression are, on the internet, sometimes governed by secret contracts between unaccountable corporations is rather sinister(it'd be like living in a city where all the sidewalks were privatized and the nearest business given the power to have their rentacops eject somebody from their patch of sidewalk for any reason); but also a more or less inevitable result of the fact that there are no 'natural commons' on the internet. Everything that is 'on' the internet is there because somebody's server is powered up, connected to the net, and responding to HTTP requests. Every last inch of 'the internet' correlates to a piece of private property crunching data somewhere. The only hope, really, is to make it easier(with things like bittorrent, or distributed caching mechanisms) for little people to easily and economically set up their own chunks of the internet...

As for the 'don't be evil' though, do you really think that Google wants to take anything down from youtube, or give anyone a cut of the ad revenue on something they spent money serving? Why would they do that? It would be foolish to expect Google to stand up for you any more than their bottom line dictates; and that may not be very much at all; but I'm not seeing the motivation to reduce the supply of youtube ad-fodder unless their hand is being forced in some way. If they wanted to make youtube smaller, they'd just delete stuff themselves, it'd be trivial.

It would be foolish to expect Google to stand up for you any more than their bottom line dictates

That's the exact same line we've heard for decades excusing evil acts from all sorts of corporations. That is exactly the kind of reasoning Google should avoid if they were ever serious about "Don't Be Evil". Turns out that they weren't.

I am leaving this story in my mental "To be continued" state. UMG is definitely evil. Google is apparently is making deals with them. There is also more to this story than what we initially saw. The question concerning Google is whether they willingly chose to join in on UMGs evil, or if they were faced with choosing the lesser of two evils.

I have to wonder if Google would agree with this. It's entirely possible (given that we do not have access to the agreement in question) that by one interpretation, it does allow UMG to do exactly that—but that this was never Google's intention.

It would be really fun to watch Google bring out the actual agreement and show how it doesn't, by a reasonable reading, permit this.

(And yeah, I know it's also possible that Google did, in fact, intend this, but in general, that seems unlikely, as it would be simply stupid for Google to allow something of that nature without heavy, heavy restrictions on it.)

I have to agree, I wouldn't be surprised if we are only getting part of the story. It wouldn't really make sense for Google to give someone the power to delete any video they saw fit, and obviously that's not how its being used seeing as this is the first mention we have heard of this secret deal. It seems more likely that they gave UMG delete privileges on the grounds that they only be used on things they have copyrighted. Some mindless office drone at UMG made the mistake of deleting it and Google didn't catch it in time to restore it.

Google has learned that creating a quality product without being sued is not an easy task and sometimes you have to shake hands and play nice with other corporations. There are groups of people who flag videos as inappropriate just because they don't like the message in it and yet no one called Google evil for giving stupid people sitting at home the ability to get videos taken down.

Why wouldn't they? If they're rational, they'll takedown every video as soon as they get a complaint from a major rightsholder, regardless of the merits. From a purely business and legal perspective.

I watched pretty much the entirety of the SOPA hearings live yesterday, and the people opposed to it (Lofgren D-San Jose and Issa R-Vista, mainly) pointed out the weakness in the takedown regime. Basically, if an entity responds to a takedown notice by taking it down, that ends any threat of legal action from people with real legal budgets. Regardless of the merits of the notice.

This creates a scenario where big rights holders can basically put a bullet into an website they don't like - Lofgren referenced a website taken down for a year (with no compensation or even charges filed) for copyright infringement for showing a video that they had permission for. The RIAA asserted copyright - when they did not, in fact - but nothing happened to them.

When they made a proposal to the SOPA amendment to adopt a loser-pays system if the claim is found without merit, it was shot down by that fucking idiot with the fucking idiotic name Goodlatte because he didn't want to disincentivize people from filing takedown notices. When Issa (and some other gentleman from California whose name I can't remember - Chaffetz, maybe) pointed out that there would be a veritable flood of copyright notices, Goodlatte and Lamar Smith said, yes, that's what we want to see have happen.

The real kicker was the debate over SOPA granting immunity to intermediate agencies for taking down websites. In other words, if Visa and your ISP cut off your website due to the unproven allegation of infringement, they are immune to any damages resulting from it. But if they don't comply, they will have to risk legal action. Issa and others rightly pointed out that there needs to be some sort of counterweight to this, otherwise unproven allegations by the RIAA will give them the power to turn of every web site in the world (from the American standpoint).

Here's the fucked up bit: Mel Watt (D-North Carolina) rose in opposition to this amendment, saying that the current bill only granted immunity to ISPs if they were issued a court order, and that was the correct way to do it. Issa countered by saying that, no, that's actually what my amendment does, but thanks for agreeing with me that that's the right way to do it. Mel Watt: Uh, I'm still opposed to the amendment, as it's not necessary. It was the most outrageous example of bullshit I've ever seen, and I spend a fair bit of my life following these sorts of things. Fuck Mel Watt - he needs an honesty implant.

Everybody needs to get on board with this and write to their representatives to kill SOPA once it passes committee (as it looks like it will).

...The one you read and agreed to before uploading content to YouTube, and then there's the "secret" TOS you aren't allowed to read and agree to before uploading content to YouTube, yet you are held to both?

Methinks YouTube will have some 'splainin' to do to a judge as to how that's OK when all others must disclose their entire TOS.

There is a separate, private, secret agreement they have with UMG that basically allows them carte blanche to delete your video, though....

No, it's the public ToS (in which they never actually promised to host your videos in perpetuity) which allows them to delete your video from their servers. The private agreement with UMG just commits them to doing so at UMG's request, rather than leaving it to their own discretion.

"4. J. YouTube reserves the right to discontinue any aspect of the Service at any time."

It's already there. They chose to discontinue their hosting of a video at that time, at the behest of UMG. Anyone using YouTube has agreed to allow Google to do that. The "secret" agreement is the reason they removed it, but the Public TOS spells out that you have assigned them the right to do so. If TheSpoom had agreed with you that you could reassign his wealth and assets at any time, and then you made an agreement

I think Google needs to rethink either its corporate behaviour or its motto, because the two do not happily coexist.

Depends on who you believe their audience is. If you believe it to be you, then yes. However Google is in business to make money, which means you are the product that Google is selling to corporations (in form of advertisements and tracking history).

When you consider the true audience, the motto makes more sense. Google doesn't want to upset the corporations feeding their bank account. The

If they don't have a copyright claim wouldn't this be Tortious interference? From Wikipedia

"Tortious interference with business relationships occurs where the tortfeasor acts to prevent the plaintiff from successfully establishing or maintaining business relationships. This tort may occur when a first party's conduct intentionally causes a second party not to enter into a business relationship with a third party that otherwise would probably have occurred. Such conduct is termed tortious interference with prospective business relations, expectations, or advantage or with prospective economic advantage."

If they don't have a copyright claim wouldn't this be Tortious interference?

This is one of the more subtle and devious aspects of SOPA. It removes liability from ISPs for doing whatever the RIAA tells them to do. Not sure if it affects tortious interference, but it does affect restraint of trade. Restraint of trade says that Mastercard can't just refuse to process transactions at, say, K-Mart, without cause. That keeps Mastercard from being in Wal Mart's pocket.

SOPA says it is OK for the people who transport media to be in the pocket of a subset of the people who produce media.

I'm astounded that people are, uh, astounded by this possibility. Do you seriously think posting things on YouTube is a right? The site is a service provided by a corporation and is almost certainly awash with "secret" agreements, just because of the subject matter of the site and how popular it is. I use sarcasm quotes for secret because Google has no obligation to disclose its contractual relationships with third parties because you, the user, aren't party to them.

Don't get me wrong, this is a pretty skeezy agreement, but let's not fool ourselves into thinking that YouTube is different from any other business asset. Its operation is governed by a load of inter-party contracts, it is controlled with no external oversight, and it exists to make money. The only difference is that we are now both the resource and the consumer, and I don't think people have quite internalized the logical conclusion of that relationship. Google doesn't owe you anything or exist to safeguard some specious rights. Everything between you and them is business, nothing more and nothing less.

So google has the right to remove anything they want but we don't have the right to complain about how they act? The right to free speech doesn't exist in your eyes?

Of course we should complain. But we shouldn't argue that they don't have the right to do so, and a lot of people in this thread don't understand that. We should argue that they shouldn't remove posts, not that they can't. We should argue the truth, not a wish.

But more importantly, Universal argues that its takedown is not governed by the DMCA in the first place. In a statement supporting Megaupload's complaint, CIO Kim Dotcom had stated "it is my understanding" that Universal had invoked the DMCA's notice-and-takedown provisions.

So better than complaining that free stuff has secrets, we'll complain that the secrets deny us free stuff?

If you want free speech, don't look to corporations to provide it. Eventually, this will come to the point where you'll pick up your truly free speech from a peer-to-peer connection, like a WiFi hotspot somewhere you happen to 'know about', then from phone to phone, or in the cafe. At least until they figure out how to block those outlets.

We are in the fight of our lives, to ensure we can preserve our freedom of speech, assembly, and redress. There is no assurance that we will prevail, either. It's a lot easier to suppress speech when it is under the guise of protecting other rights, despite those being largely the rights of corporations - as if they should have any. But that's another fight. Sort of.

You can criticize free (as in beer) stuff, but if you want free (as in freedom) stuff, you should create/build/host it on your own or under the umbrella of free licenses (e.g. GPL, creative commons, etc.).

You can't have it built and run by any profit-oriented corporation and then expect that you can use it freely (as in freedom).

Google seem to be trying their best to the biggest douches on the net. I think I can safely say I won't be buying another Android phone again and I'm going to start migrating off of Gmail. I've already started using DuckDuckGo for all my searching.

That is, when one Big Content company that has this agreement with YouTube declares war on another Big Content company that has the same agreement with YouTube, and they take down all of each other's content.

Wait a minute.... wouldn't we wind-up with YouTube as originally envisioned?

Well this sucks, I already deleted all my Youtube channels and one was pretty big because they wanted me to connect my accounts and wanted my cell number, no thanks. So Youtube is out and Vimeo and Dailymotion is in BUT what the hell do I use instead of Google seach?

Lawsuit. Google as well. In fact, if I was Megaload, I'd be suing both of them.

Sue on what grounds? They took an action that is within their TOS that you agreed to. What is your basis for harm? Would a judgement refunding your full subscription price of a full service make you happy?

There is plenty to dislike about this story, but responses to stupid actions do not need to include even stupider actions.

Lawsuit for what specifically? Why wouldn't Google have the right to take down content on it's websites at will? What law says they can't do this? I'm not saying Google or UMG is in the right ethically speaking, but everyone screaming, "ZOMG LAWSUIT!!!!!111oneoneone" is rather pointless.

Its a private website, Google is not required to host your content, nor to be unbiased about what content they show, nor are they forbidden from shopping your videos, or taking them down, or deleting them, or killing your whole google account if they want.

You need to take a step back and remember that "free video hosting by google" is not a constitutional right.

This, by the way, very nicely shows how oppression works in a corporate-dominated words. There's no government censorship, everyone is just exercising their right to control their private property. It just so happens that all effective soap boxes are private, and building your own that would reach any significant audience is prohibitively expensive - and, in the meantime, you'll be drowned out long before you can make a point and be heard.

True, but feeling outraged by a bias is perfectly legitimate, and informs your decisions about whether to use a service. How would you feel if it were revealed that Slashdot had been secretly owned Apple for several years?

Why wouldn't Google have the right to take down content on it's websites at will? What law says they can't do this? I'm not saying Google or UMG is in the right ethically speaking, but everyone screaming, "ZOMG LAWSUIT!!!!!111oneoneone" is rather pointless.

Google could do almost anything that it wanted to with respect to its own service by itself. Google is somewhat limited in what it can do with its own service through contracts with others. Moreso when one content provider seeks by contract to obtain the power to exlude other content providers from participating in Google's generally "open" service. The law -- section 1 of the Sherman Antitrust Act [wikipedia.org], among others, limits how and to what extend you can do that.

"Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal."

Partnering with "all" content providers to generate money from content, and then permitting certain privileged content providers to have content from other content providers removed for private reasons strikes people as sketchy. I'd love to see the "rule of reason" analysis that prevents this from being an antitrust violation.

Just theoretically... not knowing what I'm talking about, I might guess that MegaUpload probably has a basis for claiming that they are competition. Such a secret agreement, if it existed, would be in violation of antitrust laws.

It wouldn't give you anything against Google, probably, but it definitely would give you something against the media overlords.

The thing to do, actually, would be to search out all *others* who had similar problems, if they existed, and file a joint lawsuit. No, not class action -- only the lawyers benefit from that. Just a joint lawsuit.

Megaupload is a business, and this video is basically an ad for them. UMG is claiming that they've got an agreement that lets them shut down content they don't like, and they're using it to shut down ads for their semi-competition, similar to paying a newspaper or TV station not to carry ads for competitors. IANAL, and I don't know how strong a lawsuit that gives them, but it should at least be enough to subpoena the shutdown requests and the alleged agreement between UMG and YouTube. If the shutdown requests allege violation of copyright, then they're also on the hook for libel.

They don't want YouTube to disappear, because they want to make money off of it. However, they also want to keep Google under their thumbs, and Google will comply like they always do because they're wholly dependent on content publishers in order to have content to put ads around.

Yes, because there obviously is no way for YouTube to reverse damage like that. If UMG chooses to abuse, I'm sure they will just say "Well, that was it. Let's go home guys." instead of, you know, undoing the action.

Since google is required to respond to DMCA takedown notices anyways, does this even change anything? It amounts to nothing more than a mutually beneficial arrangement to reduce paperwork.

And let's face it, most of the videos up there have a copyright-infringing music track. I made an infringing video with over a million views, and it's still up. Then I made an infringing happy-father's-day video for my dad which was NOT publicly posted, and it was taken down within 2 hours. Probably because it was a Beatles track (he is a boomer after all).

Anyways, my point is, policing youtube is a herculean task. Since the DMCA gives all the power to copyright holders anyways, I can see why google would want to shirk the costs of enforcement.

I would be amazed if Google truly signed an agreement with UMG that allowed UMG to basically shut down YouTube whenever they wanted. If there are no limits on UMG's ability to take down videos, why don't they just take down all the videos and eliminate youtube permanently?

UMG probably didn't want the public to know. If they took down everything, people would find out, protests would ensue, and ultimately Google would remove this "feature". However, my making it appear that the takedowns were a result of DMCA claims, nobody would be the wiser. Of course, they would have to selectively remove content, but they were probably removing a lot more than they could get away with using only the DMCA.

It's like the codebreaking that went on during World War II. The Allies had gobs of actionable intelligence but they couldn't act on everything because the Axis would know the codes were broken and switch to something more secure. The Allies resorted to stuff like planting a guy floating in the water with a suitcase full of secrets as a cover for how they learned what the Axis doing.

This alleged agreement isn't in conflict with the DMCA. The DMCA says that if you own some copyrighted material, and service provider's customer puts up content that infringes it, and you allege that it's a copyright violation, the service provider has to take down the content to avoid having you sue them, and if the content provider counters that it's not a violation, the service provider can put the content back up without risk of you suing them, until you give them more paperwork to make them take it down again. (I think "more paperwork" is defined as some kind of copyright infringement lawsuit against the alleged infringer, but I haven't looked at it in a while.)

UMG is alleging that their agreement with Google lets them demand that content to be taken down without there being a copyright violation. You can't do that, because you don't have that kind of agreement with Google and you don't have a law that lets you do it. It's not in conflict with the DMCA, though it may be in conflict with common sense or "not being evil", and UMG may be using it in ways that count as restraint of trade or are otherwise illegal or unethical, but that's not the DMCA's problem.

Pure capitalism has neither government oversight nor regulation. No nation has implemented such a thing and for good reason. Business acts absent ethics. The only way to elicit an alternative behavior is to regulate it in such a way as to make following desired behavior more profitable.